Naba Kumar Biswas vs Biswarani Biswas (Dead)

Jyotirmay Bhattacharya, J.—Leave is granted to the learned advocate-on record of the appellant to correct the memorandum of appeal in the light of the report of the Stamp Reporter.

This second appeal is directed against the judgement and decree dated 31st July, 2015 passed by the learned Additional District Judge, 4th Court, Berhampore, Murshidabad in Title Appeal No. 99 of 2007 reversing the judgement and decree dated 31st May, 2007 passed by the learned Civil Judge (Junior Division), Additional Court, Berhampore, Murshidabad in Title Suit No. 16 of 1995 at the instance of the plaintiff/appellant.

Let us now consider the merit of the appeal to find out as to whether any substantial question of law is involved in this appeal for which the appeal is required to be admitted for hearing under the provision of Order 41, Rule 11 of the Code of Civil Procedure or not.

The plaintiff filed a suit for declaration of his title in respect of the "Kha" schedule property and for recovery of possession of the "Ga" schedule property from the defendant/respondent. The defendant/respondent appeared in the said suit and contested the said suit by filing written statement denying the material allegations made out by the plaintiff in the plaint.

The learned Trial Judge after considering the pleadings of the parties and their evidence was pleased to decree the said suit in favour of the plaintiff/appellant. The title of the plaintiff/appellant in respect of the "Kha" schedule property was declared. A decree for recovery of possession from "Ga" schedule property by evicting the defendant therefrom was also passed by the learned Trial Judge in favour of the plaintiff.

Being aggrieved by and dissatisfied with the said judgement and decree of the learned Trial Judge, the defendants/respondents preferred an appeal being Title Appeal No. 99 of 2007. The learned Appeal Court was pleased to allow the said appeal by reversing the judgement and decree of the learned Trial Judge primarily on three grounds viz., (i) the suit is barred by limitation, (ii) the suit is not maintainable for defect of parties and (iii) the relief for recovery of possession is not properly valued and sufficient court fees has not been paid thereon.

Let us now consider as to how far the learned First Appellate Court was justified in reversing the judgement and decree of the learned Trial Judge on the aforesaid grounds.

Let us first of all consider the point of limitation.

Here is the case where we find that an issue regarding maintainability of the suit due to bar of limitation was framed by the learned Trial Judge i.e. the issue no.2. While discussing the said issue, it was recorded by the learned Trial Judge in the order that the parties have not pressed the said issue in course of trial of the suit. As a result, the said issue was not decided on merit.

The learned Appeal Court, however, found that the suit is barred by limitation as the plaintiff''s witness being PW-2 admitted in his evidence that the plaintiff was dispossessed from the "Ga" schedule property in 1360 B.S. which is corresponding to the year 1953. The instant suit for declaration and for recovery of possession was filed on 23rd December, 1988.

Since the instant suit for recovery of possession from a trespasser was filed 35 years after the dispossession took place, we are of the view that the learned First Appellate Court rightly held that the suit is barred by limitation. Limitation is a mixed question of law and fact. Here parties have led evidence on the point of limitation. The Appeal Court after discussing the evidence came to the conclusion that the suit is barred by limitation. After considering the said evidence of the P.W.-2, we have no hesitation to hold that the learned First Appellate Court was justified in holding that the suit is barred by limitation.

Mr. Roy, learned advocate appearing for the plaintiff/appellant submits that since the parties did not press the said issue in course of trial of the suit before the learned Trial Court, the learned First Appellate Court ought not to have reopened the said issue and dismissed the suit by discussing the evidence of the parties in this regard.

It is settled law that it is the duty of the court to find out as to whether the relief claimed in any suit is barred by limitation or not, notwithstanding the fact that point of limitation is not raised by the defendants in such suit. As a matter of fact, limitation ousts the jurisdiction of the court to enter into the merit of the suit. Since the court''s jurisdiction to resolve a dispute by entering into the merit of the suit depends upon the laws of limitation, no matter whether such issue is raised by a party or not, the court has to decide the said issue on its own. As such, we hold that the learned First Appellate Court did not commit any illegality in deciding the said issue even though the parties did not press the same before the learned Trial Court.

Let us now consider the other ground i.e. as to whether the suit is properly valued or not and/or sufficient court fees on the relief for recovery of possession has been paid by the plaintiff in the said suit or not.

The relief for recovery of possession was prayed for in respect of the "Ga" schedule property which comprises of 2 decimals of land. The valuation of the "Ga" schedule property has not been mentioned separately and/or independently. The suit is valued at Rs.300/- only. When recovery of possession is prayed for, the plaintiff, in our view, ought to have valued the said relief as per the market value of the said "Ga" schedule property and sufficient court fees should have been paid thereon by the plaintiff to maintain the said suit.

Since the valuation of the "Ga" schedule property has not been given as per the market value of the "Ga" schedule property and sufficient court fees has not been paid thereon, this Court holds that the learned First Appellate Court was justified in holding that the suit is not maintainable as the suit was not valued as per the provision of the Suit Valuation Act and for non-payment of sufficient court fees on the market value of the "Ga" Schedule property. This Court, thus, holds that the learned First Appellate Court was justified in reversing the decree of the learned Trial Judge on the aforesaid two grounds.

Since the dismissal of the suit is sustained on the ground of limitation, we need not further discuss the legality and/or propriety of the judgement of the First Appellate Court on the ground of defect of parties. We do not find involvement of any substantial question of law in this appeal for which the appeal is required to be admitted. We thus decline to admit this appeal for hearing under the provision of Order 41, Rule 11 of the Code of Civil Procedure.

The appeal thus stands dismissed.

Re: CAN 1373 of 2016 (Injunction)

Since we have not admitted the appeal under the provision of Order 41, Rule 11 of the Code of Civil Procedure, no further order need be passed on the interim application for injunction. The said application being CAN 1373 of 2016 is thus deemed to be disposed of.